Red Light Violation in California

[quirkyquark]

That, right there along with the attached photos, should prove sufficient for an argument that 21453(c) is inapplicable in this case. And I see no reason why a dismissal would not be granted.

After the 2010 change in VC 40519 regarding written not guilty pleas ("A plea of not guilty under this section must be made in court at the arraignment"), we can assume that you haven't plead until you submit your TBD.

Since this is about an error on the face of the ticket and bpat has not yet plead not guilty, his declaration effectively becomes a demurrer. Technically, it's the language of the alleged violation that's the operative part, not the code section -- so if the ticket said "21453(c) - ran red light", that's enough for a judge to deny the demurrer. Realistically, whoever's considering the TBD isn't going to think about it in these terms and it's a 50-50 chance -- either (a) he/she rubber stamps a "guilty" or thinks "it's only a typo -- guilty" OR (b) he/she cares about technicalities, reads the declaration and immediately dismisses it.

bpat: you also mentioned that the cop initially said that he saw a red light while yours was still yellow. If your perception is true, and you can get a picture/video from some angle that shows the lights at one or more signals unsynchronized, you have a guaranteed win.

[bpat]

Thanks for your input quirkyquark.

"so if the ticket said "21453(c) - ran red light", that's enough for a judge to deny the demurrer."

>> The ticket says "VC 21453(C) Red Arrow - Don't Enter Roadway." on the courtesy notice. Do you still think it would be 50-50?

[quirkyquark]

>> The ticket says "VC 21453(C) Red Arrow - Don't Enter Roadway." on the courtesy notice. Can it still be considered as demurrer?

The courtesy notice is irrelevant. It's what's on the ticket the cop gave you at the time he stopped you that matters. By way of explanation, as the name suggests, the "courtesy" notice has no relation to the law. The ticket though serves as a "complaint" which the law requires before criminal proceedings can commence against anyone.

[bpat]

The ticket (Yellow citation) that the officer gave me says "VC 21453(c) Red Turn Arrow".

[bpat]

Hi That Guy,
I have prepared the Statement of Facts. You can view it at http://imageshack.us/f/338/sofz.jpg/ . I will replace <xx_yy> in the Statement with the necessary information. I have a few questions

1) After taking a left on Rio Road, the office appeared behind my car but stopped me after I took a right on I-1S. In the Statement of Facts, I have just mentioned that after taking left on Rio Road and "After driving a few feet, I was stopped by an officer who issued me the citation." just to keep it short and simple and because the above did not seem relevant to the case. Is that OK?

2) I have worded the argument, you had mentioned to get the citation dismissed in TBD of a trial, in a different way. Let me know if that looks fine.

3) I have included "Proof of correction for the CVC 16028(a) violation was submitted to the court along with the bail amount." in the statement of facts. I will check with the clerk to see if this citation is dismissed by the clerk. If so, I will update it to the format you sent. If not, should this statement suffice?

4) In the form TR 205, I have to check the evidence that I want the court to consider in support of my case. A couple of options are a) photographs (specify total number) and h) others (specify). In my case, the report from the Department of Public works has 4 photographs of signal heads and 3 from Google street view. What should I check on this? Should I check a) photographs separately and specify 4 since Google photos might not be considered and then check h) others and specify "Traffic Engineering report" or should I just check h) others and specify "Traffic Engineering report from Department of Public Works including photographs of the intersection"?

Also, should I remove the Google street view pictures from the engineering report or send the whole packet as-is? If the packet is sent as-is, should the Google pictures be included in the count?

5) Another format of the statement of facts is http://imageshack.us/f/810/sofother.jpg/ . Its the same wordings but the relevant information is underlined as in the template I refereed. Should I do something like this or the one without the underline is better?

[quirkyquark]

The ticket (Yellow citation) that the officer gave me says "VC 21453(c) Red Turn Arrow".

PERFECT! The idea then is to not go all "legalese" in your TBD but weave the relevant text from the Penal Code about demurrers, etc. into your statement so that whoever reads it knows you're serious.

This post is an example of sorts, but you don't need to bother about how it fits into your declaration. Please post the TEXT of your statement of facts (or share it as a Google document) and I'll suggest a few insertions.

[That Guy]

After the 2010 change in VC 40519 regarding written not guilty pleas ("A plea of not guilty under this section must be made in court at the arraignment"), we can assume that you haven't plead until you submit your TBD.

Well, that section does not state that "submitting a TBD" is an exclusion to that requirement or that "submitting" a TBD is any different to "requesting" a TBD. If you're suggesting that the mere fact that submitting a form TR-205 is sufficient to be deemed an entry of plea (whereas requesting it isn't) , then pursuant to CRC 4.210(b)(3) and I quote:

The defendant must file a Request for Trial by Written Declaration (form TR-205) with the clerk by the appearance date indicated on the Notice to Appear or the extended due date as provided in (2). The Request for Trial by Written Declaration (form TR-205) must be filed in addition to the defendant's written request for a trial by written declaration, unless the defendant's request was made on the election form.

... a request must also be made by submitting a TR-205.

Take it a step further, assuming that a request is only valid when signed by the defendant, then I'm not seeing a difference between submitting a signed form TR-205 requesting a TBD along with *a check for the bail amount* as opposed to submitting a signed form TR-205 wherein the defendant's statement of facts is included.

Wait, one more.... Just because a few people (wink-wink) don't believe that TBD is in fact reviewed by a judicial officer (rather than only glancing at it and tossing it aside) and they (wink-wink) don't believe that it can in fact result in a dismissal and instead, suggest that a simple "I stand by my plea of not guilty" will suffice, that does not mean that the plea entry only happens when the TBD is submitted. In fact that statement ("I stand by my plea of not guilty") is in and of itself an indication that the plea entry has already occurred at some point in time in the past and certainly before the time the TBD is submitted...

One more, a request for a TBD is not made in front of the judge. Instead, it is made to the clerk either by mail or in person. Fact is, the entire procedure is designed with the idea that a court appearance in not required. And if the language that you quoted were to apply to the TBD/TDN process, that first possible opportunity that a defendant has to enter a plea in open court would be at the point when the defendant appears for the TDN. And yet I have never head/seen that a TDN is stated by the judge asking you to enter a plea. typically, he's asking if the witnesses have been sworn in and subsequently asking the officer to begin!

My guess, and even without a specific statement pleading not guilty, the fact that you're submitting the bail without an actual plea, in theory, a plea of "not guilty" is entered on your behalf and your case is scheduled for a trial - by declaration. This would be similar to a case where the defendant refuses to enter a plea, the judge will then enter a plea of "not guilty" on his/her behalf and the case is scheduled for a trial.

Then again, maybe you'e seeing something else that I am completely missing! In which case, I trust you will let me know!

Since this is about an error on the face of the ticket and bpat has not yet plead not guilty, his declaration effectively becomes a demurrer. Technically, it's the language of the alleged violation that's the operative part, not the code section -- so if the ticket said "21453(c) - ran red light", that's enough for a judge to deny the demurrer. Realistically, whoever's considering the TBD isn't going to think about it in these terms and it's a 50-50 chance -- either (a) he/she rubber stamps a "guilty" or thinks "it's only a typo -- guilty" OR (b) he/she cares about technicalities, reads the declaration and immediately dismisses it.

It is obvious that until yesterday evening, we could not establish with any reasonable certainty, whether the light was a circular red or a red arrow (I learned the hard way not to trust in Google-Maps). So a demurrer would not have been an option until this time.

Considering the fact that the bpat has submitted a request for a TBD, received and extension, posted bail, and now has only 5 days to submit his declaration, and on the "assumption" that he has not already entered a plea by submitting his request for a TBD and posting bail, and even if he were to contact the court and assuming that they would agree to his withdrawing his request for a TBD and scheduling a court appearance, it is my opinion that he might not get an arraignment date until at least a month from now, thereby delaying the possible date of such demurrer by that amount of time as well...

Even with that, I'm not sure a demurrer offers a greater guatantee of success over a TBD simply because this is an infraction... If this had been a misdemeanor, filed by the District Attorney's office where the Deputy District Attorney attending the arraignment is fully aware of the circumstances of the case, and he/she is served a copy of the demurrer before hand, and is therefore able to voice any possible objections to the demurrer then I might agree that the defendant can present it, the DDA will respond, and the judge will rule. With this being an infraction, and with the likelihood that a prosecuting attorney will not be present, I'm not sure the average traffic court commissioner would entertain the idea of a dismissal on a demurrer after only hearing one of two possible descriptions of the circumstances, instead, it is my opinion that most judicial officers would prefer to have the officer there to justify his reason for citing one section over the other (even in a case like this one where the evidence is unquestionable).

bpat: you also mentioned that the cop initially said that he saw a red light while yours was still yellow. If your perception is true, and you can get a picture/video from some angle that shows the lights at one or more signals unsynchronized, you have a guaranteed win.

Q, you might have missed the part where OP mentioned that he is quite a distance away from the location of the alleged violation. So simply driving by to record a video is not likely to happen in the next few days. Even if it were and while there are in fact 3 signal heads, all three are located on a single upright/signal arm (with no other signal pole in sight) it would not matter whether they are wired in series (off of one wiring run) or in parallel (three separate runs, one for each lighthead) because all would be connected to the same timing circuit! As you can see from the Google view above, there is not that great a distance between one and the other so I'm not sure if any timing difference (due to any immeasurable difference in resistance with that short of a distance between them) will be noticeable with the naked eye... So we're back to square one where the officer claims the light was red, and the defendant claims the light was yellow!

Of course, as I stated in my last reply, if bpat feels this second possibility is worth exploring, it is his option take the drive. make the video and review it, that is ultimately his decision not mine. Similarly, if he feels a demurrer is worth the shot, then by all means, contact the court to see what options he has at this point in time, let us know and we'll go from there!

While I might agree that it might be too technical of a technicality to a judicial officer who's reviewing the TBD, I really am not seeing how it stands any better chance of being any less technical by way of a demurrer versus a TBD.

I, unlike others here (wink-wink) still have as much faith in a TBD as I do in a trial. And if past history is indicative of future results (that wouldn't work in the stock market though), then here is a similar case of "the (c) should have been an (a)" citation which was, in fact, dismissed at the TBD level.

[quirkyquark]

TG, it appears you missed my point entirely. I'm NOT suggesting that bpat somehow try to get an actual arraignment at this stage and then demur. I am suggesting that his written declaration make it clear that it is, in part, a demurrer.

Now, this distinction may only matter in preserving the argument for appellate review, but I think it's important because you can only object to facial defects on the pleading via a demurrer and if you don't, these objections are deemed waived (PC 1012). I think you'll agree that your approach, in a TBD, is implicitly a motion to dismiss based on an error on the citation. In a court trial, if made after the officer's testimony, it would be a PC 1118.1 motion and be perfectly valid. In the TBD context though, depending on whether he thinks a plea has already been made, the judge is technically free to deny the "motion for dismissal" as being untimely.

I would argue that the declaration is effectively equivalent to an arraignment and trial. Nothing prevents you from saying "I'm guilty. Here are my mitigating excuses. Please spank me lightly." The informal request and bail serve the same purpose they do in VC 40519 -- an intention to plead not guilty, and guaranteeing an appearance, which in this context would be a submission of the TBD.

Anyway, I digress. My idea is simply for the OP to cover ALL the bases in his written declaration and exploit the grey area a TBD resides in by making it a beast with many heads. To the "its only a typo judge", the additional language suggests that c-vs-a is not just a harmless error he can ignore; to the "rubber stamping judge", it gives food for thought; to the "dot-i's-and-cross-t's judge" who would dismiss anyway, it's not much help; to the "stickler for procedure judge", it's a procedurally valid argument for dismissal. Better safe than sorry!

Yes, I just skimmed through the previous posts so I missed the fact that bpat is far away. That and the signal configuration you explained probably make the synchronization defense a non-starter.

[bpat]

Hi That Guy,
Did you get a chance to review the statement of facts I uploaded and the questions I had?

Thanks.

[bpat]

Hi That Guy,
I spoke to the clerk about VCV 16028(a) proof of insurance and he said that they would not know if it was dismisseed until the TBD is complete and the commissioner has reviewed the case. He suggested that the line I included in the statement of facts about this violation should suffice but I should also attach the proof of insurance "Exhibit B" along with the statement of facts.

Regards.